18 May 2016

Stayin' alive - keeping that planning permission alive

You’ve spent months, sometimes years, and paid considerable application, professional and other fees, negotiating and obtaining your valuable planning consent for your land. The judicial review challenge period has now passed. Congratulations! It is understandable why at this stage developers often breathe a sigh of relief. However, if you are not intending to dispose the land at this stage, now is not the time to relax fully. This blog explains why not, and ultimately how to get there. 

Planning permissions, until implementation, have a finite life. A planning permission can be kept alive by ‘commencing’ development to crystallise the value of the land. Once development has commenced, the permission endures without expiry unless and until the local planning authority seek to serve a completion notice. Failure to keep a valuable permission alive could jeopardise the future development potential of the land as there may have been a change in planning policy framework in the interim.

The statutory default time limit is 3 years for a full planning permission. For outline permissions, the default period is 3 years for submission of reserved matters, and an additional 2 years for implementation following final approval of the last of the reserved matters. Different time limits can be negotiated but only if there are good planning reasons. So, 3 years. That’s a long time, right? No, not when it comes to implementation, especially for complex sites that come with a raft of pre-commencement planning conditions.

How can I commence development?

In order for operations to amount to the commencement of development under a planning permission, those operations must be authorised by the permission in question, read together with its conditions. In general, operations carried out in breach of a condition cannot be relied upon as material operations capable of commencing the development within the meaning of section 56(2) of the TCPA 1990.

Conditions on a planning permission must either be complied with, at least in substance, or if it is sought to vary or discharge them, the mechanism in section 73 of the TCPA 1990 Act, or in appropriate circumstances in section 73A, can be used.

An implementation strategy is thus essential to ensure that the sufficient time is built into that process to ensure that all pre-commencement conditions and all relevant studies and information and details provided to the local planning authority in order that all/any pre-commencement planning conditions can be discharged in good time.

To commence development it is necessary to satisfy the legal requirements in section 56(4) of the Town and Country Planning Act 1990. This says that 'development is taken to be begun on the earliest date on which a material operation is carried out'. A material operation will vary on a case by case basis. It can include the excavation of trenches for the purposes of constructing foundations, laying of hardcore to form an access road, any works of construction, demolition, digging foundations, and a material change in the use of the land.

The works do not have to be particularly costly or extensive, nor do they have to be carried out with any intention as to the remainder of the works. The more one does, the more likely it is that development will have been commenced and have exceeded the de minimis threshold.

Lawful implementation

The difficulty is ensuring that the commencement work amounts to a lawful implementation of the permission. To achieve this requires the discharge of all pre-commencement conditions together with the commencement work.

Maintaining good communication with funders both before and after permission has been granted to secure payments are available at an early stage to discharge these obligations within the timeframes, is vital.

Conditions precedent

Failure to comply with a so-called 'condition precedent' can result in the entire development being unlawful. What does/does not amount to a true condition precedent is frequently open to challenge. To help answer this, a number of questions need to be asked.

These include:

- Has there been a breach of condition? 

- Is the condition phrased as an express requirement or prohibition? 

- Does the failure of supplying that detail or information prevent simply that detail of the development but the commencement of any development pursuant to a planning permission. 

- What is the effect of the condition when read in the context of the planning permission as a whole? Does the condition go to the "heart of the planning permission" so that a failure to comply makes the entire development unlawful?

If the answer to these questions is yes, then would any of the exceptions such as irrationality, or abuse of power by the local authority in taking enforcement action or compliance in substance, apply?

By way of illustration, for a condition to be one that goes to the heart of the permission, the condition would have to relate to some fundamentally important aspect of the development. For instance, in the case of Greyfort Properties Ltd v Secretary of State for Communities and Local Government and another [2011] EWCA Civ 908, the ground floor levels of the building were to be agreed with the LPA before any work commenced on the site. The court held that the planning inspector was entitled to find that that condition went to the heart of the permission. By contrast, the prior approval of a landscaping scheme and details of boundary treatments in the case of Bedford Borough Council v Secretary of State for Communities & Local Government & Anor [2008] EWHC 2304 (Admin) was not considered to go to the heart of the permission.

However, as with so much in planning, it will normally be 'a matter of fact and degree' in each case, having regard to all the surrounding circumstances. So, whereas a pre-commencement landscaping condition might not be considered vital and thus amount to a true condition precedent in one case, due to the sensitivity of a site in another case, it could be considered critical.

If a condition does fulfil the relevant tests, making a start before those matters were approved would not render the commencement of development unlawful, provided that an application for such approval was made no later than the date on which the permission would otherwise have lapsed.

Section 106 Agreements/overage 

Section 106 Agreements often have a different definition and thus trigger of commencement. The definition may, for example, exclude certain preparatory works in order to delay the date as far as possible before obligations are triggered and payments are made. The section 106 trigger does not govern whether a planning permission has been lawfully implemented for the purposes of section 56(4).

There may also be overages in the purchase contract which are sometimes triggered by the commencement of development.

CIL

Commencing development will trigger the requirement to pay community infrastructure levy (CIL) sums. The meaning of commencement of development for the purposes of the CIL Regulations 2010 is the same as section 56(4). Unless the charging authority has published an instalment policy, and many have not, sums will be payable within 60 days from the date of commencement. To avoid financial penalties and other repercussions it is vital that the following be submitted before development is commenced:

- Assumption of Liability Notice
- Commencement Notice of the intended date of commencement
- Social housing or charitable relief claim (if relevant)* and obtain the authority’s decision

Failure to provide these details before development is commenced will result in a number of repercussions including surcharges being payable and the opportunity to seek any relief available lapsing.

Proving lawful commencement 

It would be sensible to keeping detailed records, whether for the local planning authority or future purchasers of the site to show how and when commencement of the permission occurred. The records could include, ideally, a letter from the local planning authority discharging all/any relevant pre-commencement planning conditions. Alternatively, dated photographs showing the extent of the works undertaken to commence development, along with a witness statement from the contractors confirming when and where the works were carried out along with any correspondence from engineers/contractors confirming the scope and payment for the works. In the event of any dispute, whether from the local authority or other interested party, a legal opinion as the lawfulness of commencement could be obtained.

LDCs

It may be necessary, if there is a continuing dispute, for an application for an Lawful Development Certificate ('LDC') to resolve the matter. Recently (May 2016) a cemetery company secured an LDC on appeal. The inspector confirmed that foundation trenches had the effect of implementing a planning permission for a chapel and maintenance building, in spite of their having been dug in the wrong place (appeal decision). Although there was some overlap between the foundations as they should have been dug and the foundations as in fact they were dug, this was relatively modest. Sevenoaks Council claimed that the works were so slight as to be de minimis and, therefore, failed to amount to a material operation. The inspector queried whether, if the building had been completed for more than four years but had been subject to conditions which the Council then wished to enforce, could the appellant have argued that this was not the building for which permission had been granted? The inspector concluded it seemed unlikely. The inspector issued a lawful development certificate confirming that works had been carried out to begin the development.

However, in the case of Greyfort Properties Ltd v Secretary of State for Communities and Local Government and another [2011] EWCA Civ 908, the developer was not so fortunate as whilst a number of preparatory works had commenced development, the Court of Appeal held that the works did not lawfully implement the permission as a pre-commencement condition requiring an agreement on ground level conditions to be reached had not been discharged.

Conclusion

Getting planning permission remains a considerable challenge and is far from simple. Keeping that permission alive takes thought, time and costs. Having a clear structure and timeframe along with the necessary funding in place to ensure  timely submission of details and commencing development to keep the permission is kept alive is critical. Without this, your time and effort in securing your valuable consent are at risk.

Notes:

*For an application for charitable relief under the CIL Regs 2010, to be valid the following pre-conditions must be met:

47.—(1) A person who wishes to benefit from charitable relief must submit a claim for charitable relief to the collecting authority.
(2) A claim for charitable relief must—
(a)be received by the collecting authority before the commencement of the chargeable development to which it relates;
(b)be submitted in writing on a form published by the Secretary of State (or a form to substantially the same effect);
(c)include the particulars specified or referred to in the form; and
(d)where there is more than one material interest in the relevant land, be accompanied by an apportionment assessment.

Section 47(6) of the Regs makes it clear that

6) A claim for charitable relief is valid if it complies with the requirements of paragraph (2).

However, the claim whilst it might be valid, will lapse in the event that an application is made in accordance with those requirements but where, as noted by subsection (3) (see below) the development commences before a decision has been reached.

(3) A claim for charitable relief will lapse where the chargeable development to which it relates is commenced before the collecting authority has notified the claimant of its decision on the claim.

It is all too easy to think development can commence once the application has been lodged in accordance with 47(2). This could be a costly error.

**  The Bee Gees' awesome song 'Stayin' Alive' has close to 104 beats per minute and was used in a study to train medical professionals to provide the correct number of chest compressions per minute while performing CPR. The study found that the quality of CPR is better when using the songs tempo as a guide as between 100-120 chest compressions per minute are recommended by the British Heart Foundation.






1 comment:

  1. This is a great piece of advice. Really useful for planning consultants as much as clients when advising on and stressing the need for compliance with a decision notice.

    ReplyDelete